Thursday, 16 June 2016

A blot on the conscience of Scotland

The conviction of Megrahi hinged on the testimony of one man, the chief prosecution witness Tony Gauci, a Maltese shopkeeper. Without Gauci there was no case. He was the owner of a clothes shop in Malta called Mary's House. It was alleged at the trial that on 7 December 1988, Megrahi bought some clothes and an umbrella from Gauci's shop. The clothes were then said to have been wrapped around the improvised explosive device that brought down the PanAm aircraft over Lockerbie a fortnight later. This was the only piece of evidence linking Megrahi to the device.

The credibility of Tony Gauci was badly damaged by the man who initiated the prosecution of Megrahi and his co-accused, Lord Fraser of Carmyllie, in a remarkable newspaper interview four years ago. The words attributed to him – he has never denied using them – were:

'Gauci was not quite the full shilling. I think even his family would say he was an apple short of a picnic. He was quite a tricky guy. I don't think he was deliberately lying but if you asked him the same question three times he would just get irritated and refuse to answer.'

When the then Lord Advocate, Colin Boyd, read this assessment of the Crown's star witness, he was sufficiently moved to ask Lord Fraser to clarify his view of Gauci's credibility; others, including Tam Dalyell and Megrahi's counsel, spoke out more strongly. If Lord Fraser did clarify his view, the world remained unaware of the clarification. Last August, however, Lord Fraser gave a revised opinion in a little-noticed television interview mainly concerned with Megrahi's release and the justice secretary Kenny MacAskill's handling of it. I noted down his reply to a question about Gauci:

'I have always been of the view and I remain of the view that both children and others who are not trying to rationalise their evidence are probably the most reliable witnesses and for that reason I think that Tony Gauci was an extremely good witness.'

What the use of the phrase 'children and others' was intended to convey about Gauci, and how this statement could be compared to Lord Fraser's earlier view of the witness, was not pursued as an issue (except in this magazine). Conveniently, perhaps, all eyes were on Megrahi himself, the 'triumphant' return to Tripoli, and the perceived shortcomings of Kenny MacAskill. Tony Gauci and Lord Fraser of Carmyllie pretty well disappeared off the radar.

Extremely awkward questions remain unanswered, however, and will continue to haunt the Lockerbie case so long as there is an official conspiracy of secrecy. Specifically:

Were the clothes sold to Megrahi?

Were they sold on the date alleged?

As a result of its investigation, the Scottish Criminal Cases Review Commission formed the view (a) that there was 'no reasonable basis' for the court's judgement that the purchase of the clothes from Mary's House took place on 7 December and (b) that the clothes were bought on some unspecified date before then. As 7 December was the only date when Megrahi was in the area, it follows (a) that they could not have been sold to Megrahi and (b) that the case against Megrahi collapses.

This much we know. What we do not know – and what we seem to be further away than ever from knowing – is the nature of the 'additional evidence' which so convinced the commission that the court's judgement was wrong; and, more disturbing still, why this evidence was not made available to the court of Scottish judges sitting in the Netherlands.

In 2007, the commission concluded that it had identified six grounds where it believed that 'a miscarriage of justice may have occurred and that it is in the interests of justice [my italics] to refer the matter to the court of appeal'. Since there is no possibility of a referral to the court of appeal, and no prospect of the commission's report being published, we have the worst possible outcome – lingering doubt and suspicion, a complete lack of closure, and a continuing affront to the families of all those who died.

I wrote here last August: 'Judicially, the case is at en end. We are therefore left to assume that the interests of justice will never be served. There is a blot on the conscience of Scotland and it is hard to see how it will ever be eradicated'. It is harder still today.

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